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NBI Seminar: Child Custody and Visitation Rights: A Petition for Visitation and/or Custody

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Child Custody and Visitation Rights: A Petition for Visitation and/or Custody.”

Thanks!

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CHILD CUSTODY AND VISITATION RIGHTS

  1. A. Petition for Visitation and/or Custody

Like nearly any other court case, all custody actions – regardless of how much custody is being sought (e.g.: primary, partial, or visitation, etc) – begin with the filing a complaint.  The Pennsylvania Rules of Civil Procedure provide for a standard form for a complaint, which can be found in Pa.R.C.P. Rule 1915.15 and 1915.16.

The various county courts in the Philadelphia area offer forms for custody complaints, and they can be found at the following websites:

 

  • Elements of a Complaint

As one can see from reviewing the forms mentioned above, a standard complaint for custody is to include, more or less, the following information:

Unlike a civil complaint, very little additional information or advocacy needs to be included in the complaint for custody.  The opportunity to advance additional information and/or advocacy is when interacting with the opposing party or attorney and/or at a hearing scheduled pursuant to the filing of the Complaint.  The purpose of the custody complaint is merely to get the most basic information before the court: who the case involves, what the Plaintiff wants, and an assertion that no other court has jurisdiction.

When requesting relief in the complaint, it is important to use the proper language which best describes why the Plaintiff is seeking.  23 Pa.C.S.A. §5322 lays out the terms and their definitions.  Pursuant 23 Pa.C.S.A. §5322, the relevant terms are as follows (as quoted directly from the statute):

  • legal custody: the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.
  • sole legal custody: the right of one individual to exclusive legal custody of the child.
  • shared legal custody: the right of more than one individual to legal custody of the child.
  • physical custody: the actual physical possession and control of a child.
  • sole physical custody: the right of one individual to exclusive physical custody of the child.
  • primary physical custody: the right to assume physical custody of the child for the majority of time.
  • shared physical custody: the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.
  • partial physical custody: the right to assume physical custody of the child for less than a majority of the time.
  • supervised physical custody: custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
  • In a statutory provision other than in this chapter, when the term “visitation” is often used in reference to child custody, and may be construed to mean:

(1) partial physical custody;

(2) shared physical custody; or

(3) supervised physical custody.

In the vast majority of case, the only issue in dispute is physical custody as, unless there is unusual and/or extenuating custody (e.g.: incarceration, absence, abuse), the parents of a child are both presumed to have a right to shared legal custody.  As defined above, physical custody is when a parent actually has a child personally with him.  By contrast, legal custody is the right of a parent to have access to, and make decisions regarding, important parenting and lifestyle issues.

It is also important to observe the fact that the specific definitions of/for the terms above do not always coincide with popular or colloquial usage.  It is very common for a client, when consulting with his attorney, to use one or more of the terms above without reference to its technical, legal, definition; therefore, it is important to discern precisely what a client is seeking instead of assuming even a vague familiarity, much less a fluency, with the terms mentioned above.  For example, many clients, when consulting with their attorney or filing a custody petition on a pro se basis, frequently indicate they are seeking “full custody” of their children, despite the fact that no such designation exists; similarly, they often refer to “sole custody” in the same way.  In addition, it is not uncommon for someone to use the term “visitation” when he really means “partial custody.”  So, it is important to discern what the client actually means sometimes despite the precise words being used.

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The Process of Subsidiarity

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Many critics of distributism claim that what we want to achieve would require the expansion of state power and that we really want an all powerful state. What we actually advocate is the decentralization of government power. We want to distribute the various powers of government as close to the local level as can be practically achieved. This is because we promote the principle known as “subsidiarity.” Subsidiarity states that,

“A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view of the common good.”                                      – Pope St. John Paul II

That sounds great, but how would it work?

Subsidiarity goes beyond the typical “states’ rights” argument put forward by the political conservatives of the United States of America. While some in the USA who argue for states’ rights might regard it as a necessary first step to further decentralization of government authority, others voice a “let the states decide” attitude which seems to indicate that their only real objection to certain government laws is the fact that it is the federal government imposing them. Their statements suggest that the same laws would be fine if imposed at the state level without any further decentralization of authority. Listening to some of their arguments seems to give the impression that they don’t really recognize that the centralization of power, even to the state government, makes government less democratic. The more power gets centralized, the more undemocratic the government becomes. They only seem to be concerned when the exercise of power crosses the line from state to federal authority. In reality, however, it is only at the local level that the average citizen really has a voice. Therefore, the more localized the authority, the more democratic the society.

The sad truth is that so many of us have become too accustomed to the idea that the higher levels of government is where problems really get solved. We pay more attention to state and federal elections than to local ones precisely because the authority which naturally belongs at the local level has been usurped by state and federal governments. “I will write my congressman,” and “I’ll take this all the way to the Supreme Court” became the reaction, and the reality, of how we view the political process. While we in the USA believe ourselves to be a bastion of democracy, we have allowed (and assisted) the gradual stripping of our democratic voice. This has gone beyond the making of our laws and the defending of our rights, but even to how we assist those in need. As a society, we have gotten to the point that we automatically look to higher and higher levels of government to resolve even local issues. It is sad, but it seems that most people believe that the higher the level of government, the broader its scope of authority.

Distributism, on the other hand, argues that the higher the level of government, the narrower its scope of authority. The question is how this can be applied in a practical and workable way. While there may be variations in application due to cultural differences in different regions, a basic outline can be presented as a starting point. The foundation of this outline is to understand the “orders of society” and their relationship to each other.

The “lowest” order of society is the family, not because it is the least important but because it is the most. It is the very foundation of society. Above that are religious, occupational and social groups which are free institutions for the mutual support and benefit of their members. The remaining “orders of society” would refer to the different levels of government starting with the local community and moving up from there, each fulfilling only those functions that, by their nature, cannot be fulfilled by the level immediately below it. From the distributist perspective, local issues should be handled as locally as possible. Even if an issue exists across a larger region, each locality should be left to direct how to handle it within its jurisdictional boundary to the greatest extent possible, even if assistance is needed from higher levels of society. This is a fundamental concept to understand about subsidiarity.

When an issue arises that needs to be addressed, the level of society where that issue arises is the natural point where the issue should be addressed. In cases where it cannot be addressed there, the members of that level would petition the next higher level of the orders of society for assistance. Therefore, if a family is in financial need and needs immediate assistance, they should naturally turn to those societal organizations like church, work association (guild) or other social organizations for assistance. If a particular vocation needs a school to provide training in the skills it needs, it should first look to the members of that vocational guild. If it cannot provide for itself, it can look to other guilds of the same vocation, or even discuss combining resources with other guilds to establish schools to meet their combined needs.

It is only if these first attempts cannot resolve the issue that governmental bodies should get involved, and then only by petition of the immediate lower level. If, for example, a lot of families in the community needed assistance and churches and other local associations found themselves unable to adequately provide that assistance, they could raise the issue to the city or to related organizations in other areas. If a city was not able to address an issue, it could ask nearby cities for assistance or raise the issue to the county. In this way, each level of society would render assistance based on the need asserted by the level immediately below it, and that assistance would not usurp any functions of the lower orders of society even if the higher order needs to coordinate the activities of the lower orders due to the nature of the situation at hand, like a natural disaster.

This process keeps as much authority as possible at the local level and, by doing so, preserves the ability of citizens to effectively curtail the usurpation of authority by higher levels of government. Because the greatest level of influence is the most local level, and because the individual citizen’s vote has its greatest influence at the most local level, this process preserves the greatest level of democracy for all.

Distributism vs. Globalism

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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There has been a tendency over the last several decades toward globalism. This goes beyond the so-called “global economy,” with its free trade deals favoring international banks and corporations. This trend has resulted in the formation of international bureaucracies imposing standards, if not laws, on otherwise sovereign states. While there was always some resistance to this tendency, it has nevertheless progressed to the point that there is now a growing movement of outright rejection. What was initially presented as a path toward peace and harmony is increasingly viewed by common citizens as a growing threat to their freedom and way of life. What is the position of distributism in relation to the idea of globalism?

Globalism is the idea of those who believe they should help direct the development of social, cultural, technological, or economic networks around the world through political influence, and who desire the establishment of international political bodies to govern on an international level. The idea is that, by having multiple people of various cultural and economic backgrounds come together to discuss issues, problems can be resolved effectively and peacefully. Since the resolutions of these bodies can only be effective if they are actually binding, these organizations have to acquire legally recognized legislative authority. This is gladly accepted by the promoters of these organizations who seem to assume that those who run these international legislatures will always see things the same way they do. They hardly ever seem to consider what happens if they don’t. They also don’t seem to care if the policies and laws they desire to establish are actually wanted by the people who will end up being subject to them.

The problem with placing such a wide-ranging authority in the hands of a political body with no political or cultural attachment to the people is that people from different countries have different cultures and customs. They are rightfully proud of them and reject efforts by “those who know better” to toss them aside in the wake of the globalist view of how things should be. They want their own way of doing business, of farming and manufacture, of protecting public health and the environment, of securing civil liberties, of running their schools, of deciding what should be taught in those schools and of deciding how to integrate immigrants into their society. They do not want people who do not share their views of culture and custom to make such decisions for them, and this is precisely what the globalists want to do.

The globalists “negotiate” a one-size-fits-all agreement which actually only appeals to those whose views have a majority representation in the international political organization. In other words, only the globalists really get to decide. This was a significant part of the movement in Great Britain to leave the European Union. The European Union started as a “common market” to work together to help the economies of the separate European countries. It has evolved into an international authority with its own flag, its own anthem, and its legislature makes laws that override the national and local laws of its member states. Even when the decisions of globalist organizations are not legislatively binding, their existence creates a great political pressure for states to comply even if the citizens of the state oppose them. For example, the United Nations not only told Ireland, a sovereign state, that it should change its abortion laws. The politicians in Ireland’s government, led by the U.N. instead of their own people, put it up for a vote. It was resoundingly defeated because the people of Ireland don’t want it. The United Nations even told the Catholic Church to change its religious doctrines according to its view of “child welfare.” There have been cases where globalist organizations have used economic pressure, like denying aide, to try and coerce countries to adopt unwanted policies. By moving the decision-making power further and further away from the people, the political process ultimately becomes less democratic as individual voices become less able to influence decisions that impact their daily lives.

Distributists, on the other hand, would not only promote a country’s sovereign right to direct its own affairs, we also promote that right for political regions and local communities within a country in accordance with the principle of subsidiarity.

“A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view of the common good.”

This view provides a foundation for people to preserve their culture and customs and to direct their own lives, and does so while still making room for national assistance when and where needed. It is not an “isolationist” position. It is a view that does not exclude the idea of international cooperation in addressing wider issues, but it does not include relinquishing of sovereignty to permanent international organizations as part of the process.

The world is filled with various cultures and customs, and the people from those cultures who share those customs either love them or will change them on their own. There isn’t a one-size-fits-all way of life and of doing things. The purveyors of globalism, even if they don’t start out to do so, ultimately trample on the rights of the people they claim to be helping. The people who say we should “celebrate diversity” are the ones who end up trying to force everyone to be the same. The people who shout the loudest about tolerance end up being the most intolerant of all. They believe they are going to do good, but they end up establishing the very kind of repressive government they claim to hate, using the very tactics they villify. In the end, even though they want peace, they will cause rebellion because the people they claim to be helping will resent them for being oppressive overlords.

Following the ‘Wiseman’ Standard in Pa. Custody Battles Is Unwise

Although the so-called Wiseman standard, the standard by which shared custody arrangements were determined, stood for many years, the recent Pennsylvania Superior Court case of P.J.P. v. M.M., 2018 Pa. Super. 100, has officially declared the Wiseman standard obsolete and no longer applicable to Pennsylvania child custody matters.

In the matter of P.J.P., a custody case, the father appealed a decision in the trial court regarding his petition to modify a custody order that he believed was not sufficiently favorable for his custody goals.

The father and the mother are a divorced couple who obtained a child custody order in April 2016. This order granted the mother primary physical custody of the child. In January 2017, the father sought more custody, specifically shared physical custody, and filed a petition to modify.

At the trial, in August 2017, the court made many findings of facts that are directly relevant to its ultimate decision to deny granting shared custody to the father. For example, when the mother has custody she sends the father many photographs and videos and encourages the child to call the father. By contrast, the father does not want to call the mother during his custody times and sends no photographs and videos to the mother. The mother further claimed, and the father admitted, that he has insulted the mother in the presence of the child. He also admitted to telling the child to be sure to look up the instant case on Google Scholar when he is older to know what happened during the case. The mother is also conscientious in ensuring that the father has nice gifts from the child for holidays and such, while the father makes only modest efforts to reciprocate. The parties also had disagreements over the procedure and process for dropping the child off at preschool in the morning. The mother claimed the father refused to get the child ready and just dropped him off at her house, while the father claimed the mother “unilaterally” changed the procedure. Co-parenting counseling was also attempted by the parties. Unfortunately, while the mother was trying to fully invest herself in said counseling, The father refused to meaningfully participate, and the counselor believed the counseling was “not going anywhere.” Of course, the father has a different interpretation of much of the above, but the court made its findings, which favored the mother, after a complete review of the facts, testimony and evidence.

On appeal, the father challenged the denial of shared custody, arguing it was contrary to the best interests of the child. The Superior Court first noted that the trial court made certain credibility determinations that were within its discretion. The court then mentioned that child custody is governed by 23 Pa.C.S.A. Section 5328, which lays out 16  factors for the court to consider when making a custody determination. Superior Court observed that the trial court analyzed each factor and noted that most were either inapplicable or weighed equally for both; however, there were four factors (namely the likelihood to encourage and permit contact with the other party, availability of extended family, attempts to turn the child against the other parent, and the level of conflict and willingness to cooperate with the other party) which weighed heavily on the mother’s side. No factor weighed heavily on the father’s side.

The father argued that the trial court abused its discretion by failing to apply the Weisman standard. In Weisman v. Wall, 718 A.2d 844 (Pa. Super.1998), the court ruled that courts must make four findings when ruling on shared custody “both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; both parents must evidence a continuing desire for active involvement in the child’s life; both parents must be recognized by the child as a source of security and love; a minimal degree of cooperation between the parents must be possible.” The father further argued that since he and the mother, in his view, meet the above four factors, shared custody should be awarded.

Superior Court ruled that the father’s reliance on Weisman is misplaced. As noted above, Weisman was decided in 1998 while Section 5328 became law in 2011. The court does not believe the difference between Weisman and Section 5328 is trivial. Specifically Weisman “required the court, before awarding shared custody, ‘to make at least a minimal finding that the parties were able to cooperate before awarding shared custody” while, under Section 5328, the court “must determine the best interest of the child by considering all relevant factors, including but not limited to, ‘the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.”’

Superior Court noted that the plain language of Section 5328 contradicts Weisman. Unlike Weisman, the court is not obliged to make any specific findings before awarding shared custody. Instead, the court must consider all 16 of the relevant factors, and poor cooperation need not be dispositive. In sum, therefore, Superior Court specifically described Weisman as obsolete.

Finally, the court explained that its citing to Weisman in the recent case of R.S. v. T.T., 1133 A.3d 1254 (Pa.Super.2015) does not belie the above analysis. In R.S., the court used the Weisman factors to supplement its own analysis where it seemed Section 5328 did not appear to lead to a reasonable conclusion in light of the available evidence. Moreover, the court in R.S. never once said trial courts “must” make Weisman findings. Instead, Weismanmerely holds persuasive value as the its factors have been assimilated into Section 5328.

Upon full review of the decision, it appears that P.J.P. has hammered the final nail into the casket of the Weisman analysis. Weisman, for all intents and purposes, no longer appears to be the law for Pennsylvania child custody.

Originally published in The Legal Intelligencer on July 5, 2018 and can be seen here.

Futures Markets and the Absurdity of Capitalism

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Capitalism is often celebrated by its supporters as the only economic system that can really deliver the goods, the only way of arranging our economic activity that has or that can lift mankind out of its supposedly otherwise inevitable poverty. And it is the case, one must admit, that capitalism does act as a remarkable spur to the manufacture of stuff, all kinds of stuff, sometimes useful, but just as equally useless or even harmful – anything, in fact, that the producer thinks can be marketed. But production of goods, even useless goods, is not the hallmark of capitalism. Rather capitalism, understood as the separation of ownership and work, has as its unique attribute not production, but selling, even, as we are about to see, selling of things that really do not exist.

The human race has always grown or otherwise gathered food, and there has probably always existed some kinds of exchange. But the growing or obtaining of food and the exchange of one desired object for another was always seen as a subordinate part of the life of the human race. Obtaining food was for the sake of living, exchange was for the sake of living better. But with capitalism this common-sense relationship of means and ends is very often perverted. Now all production is for the sake of exchange, social life becomes subordinated to the processes of production and exchange, and they in turn become subordinated to more exotic economic practices. This is because the capitalist imperative is always more sales, more profit, more speculative ways of making money, without any inherent limit or even a notion of what all this activity is for, except for the enrichment of those who own or control the economic processes. Capitalism as the separation of ownership from work creates a class of individuals who are removed from the production of useful objects and who regard the objects produced as primarily commodities to be sold, rather than useful goods to be consumed. Hence the imperative for more sales, ever increasing profits and market share, regardless of demand, because there is no natural limit, no end for which one is striving and with which, when obtained, one is satisfied. Let us look at the interesting example of the futures market in grain and see what we can learn from it as to the nature of the capitalist approach to organizing an economy.

In his book, Nature’s Metropolis: Chicago and the Great West, William Cronon discusses among other topics how the grain trade gave rise to the futures’ market in agricultural products. This account shows the absurdity of economic activity divorced from any rational end, and eventually even from a real product, the purposeless kind of economics fostered by capitalism. As long as something makes money for those who own or control it, capitalism cares nothing for whether the activity actually contributes anything toward meeting mankind’s real needs for goods and services.

Originally, as has generally been the case with mankind, grain grown on the prairies of Illinois and neighboring states was a means of feeding the farmer, his family and his near neighbors. But as it became an item to be shipped and sold, and eventually turned into a commodity future at the Chicago Board of Trade, we can see the transformation of a human and natural object into the abstraction of a commodity, something regarded as merely a means of profit.

A certain amount of grain trading and shipping existed from the early 19th century using water transportation. But this was slow and awkward and did not reach every place. Before there could be a transformation in the understanding of grain, there had to be a more efficient means of transportation. This was provided by the railroads, which were built mostly to facilitate the capitalist imperative to totally commercialize every aspect of life. If people had thought of grain as primarily a food to be consumed pretty much where it was grown, then the huge railroad network of the Mid-West would probably never have come into existence, since the existing modest means of transportation would have sufficed. Thus to extend and fully implement the capitalist transformation of wheat from a food into a commodity, the railway system first had to exist. The building of the railroad network transformed not only food exchange, but the environment, both natural and cultural of the region and the nation. Capitalism, then, both building upon and transforming the human vice of greed, powerfully shaped the entire culture and violently captured such pre-capitalist aspects of society as food production and local exchange and bent them to its purposes.

The existence of the railroad network enabled farmers to conceive of themselves not as growers of food for consumption but as producers of a commodity. Grain was shipped via the railroads to Chicago where it was held in large grain elevators for eventual shipment to the East coast. Originally the ownership of any particular sack of grain was retained by the farmer who harvested it. But naturally sacks of grain differed from each other significantly in quality. The storage of these sacks in grain elevators created a problem: “elevator operators began objecting to keeping small quantities of different owners’ grain in separate bins that were only partially filled…. To avoid that…, they sought to mix grain in common bins.” To do this required some system of grain standardization or grading. After such a system was created it became possible for the elevator owners to contract for sale of a certain quantity of a certain grade of wheat, with no reference to any particular sack of wheat actually existing anywhere. But because of the ever-changing price of grain, sellers and buyers soon realized that they could essentially bet against the future price by contracting in the present for sale or purchase of a definite quantity of grain at some future date, hoping that the price would increase or decrease to their benefit by the time of the actual sale. Ultimately this created the final absurdity:

…futures contracts [which] were essentially interchangeable and could be bought and sold quite independently of the physical grain… Moreover, the seller…did not necessarily even have to deliver grain on the day it fell due. As long as the buyer was willing, the two could settle their transaction by simply exchanging the difference between the grain’s contracted price and its market price when the contract expired. [They] could complete their transaction without any grain ever changing hands…. The futures market was a market not in grain but in the price of grain…one bought and sold not wheat or corn or oats but the prices of those goods as they would exist at a future time. Speculators made and lost money by selling each other legally binding forecasts of how much grain prices would rise or fall.

Grain went from being a means for feeding the population of farmers and others who lived nearby, to being centrally stored in bins in Chicago and shipped throughout the Northeast United States and into Canada, into being merely a symbol, but nevertheless a symbol that enabled speculators to engage in exchange. The contracts themselves have become a commodity to be bought and sold, but the contracts now have no necessary connection with any object of real economic value.

Despite its claim to be the only economic system that can produce sufficient goods to satisfy mankind’s needs, capitalism is really not interested in production at all, except as that can serve sales. It is interested in moneymaking, to be sure, but moneymaking by nearly any means that one can concoct. It might seem obvious, for example, that the financial sector would be a modest adjunct of the more primary economic activities of production or even exchange, sometimes necessary, often helpful, but always subordinate. But frequently someone can make more money by a merger or buyout, which often results in a decrease in real economic activity, than by actual production.

It should be obvious that mankind’s economic activity exists to serve our need for external goods and services. Thus economic activity must always be subordinate to the genuine needs and interests of humanity. But when economic activity is seen as basically a means of getting rich by almost any method, it is apt to become entirely divorced from meeting our real economic needs. The economy becomes essentially a private playground for those with enough skill or money to manipulate it in their favor. Pope Pius XI wrote with regard to such types of economic manipulation, “A stern insistence on the moral law, enforced with vigor by civil authority, could have dispelled or perhaps averted these enormous evils” (Quadragesimo Anno, no. 133). But this is too rarely the case in a capitalist, commercial society, where indeed as Karl Polanyi noted, “society itself becomes an `adjunct’ of the market.”

You can learn more about this issue here.

Death, Divorce and the Division of Property and Estates

When a party dies during the pendency of a divorce matter, a question immediately arises: will the matter be resolved pursuant to the Divorce Code (i.e.: 23 Pa.C.S.A. Section 3323(d.1)) or the Probate Code (i.e.: 20 Pa.C.S.A. Section 6111.2)? While the statutes are fairly clear, there are times where a circumstance still needs to be sorted out by the court. Such a case arose in the Superior Court of Pennsylvania matter of In re Estate of Michael J. Easterday, Deceased, 171 A.3d 911 (2017).

In the Easterday matter, the decedent, Michael Easterday, passed from this life on Sept. 21, 2014, and was survived by his two sons, a daughter and his second wife. About a year before Easterday’s death (Aug. 13, 2013), the wife filed for divorce against Easterday. In or about December 2013, Easterday and the wife entered into a postnuptial agreement in which the parties agreed to waive any and all rights to the pension and retirement plan of the other, including any and all rights possibly available as a surviving spouse or beneficiary. The agreement also specifically states that it would remain in full force and effect without regard to future reconciliation, change in marital status, and entry of divorce decree absent a future written agreement.

 In November 2013, the wife furnished Easterday with an affidavit of consent to divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Not long after, Easterday executed the aforesaid affidavit and returned it to the wife. The wife, for an unknown reason, retained the aforesaid affidavit for approximately six weeks (until mid-January 2014) before providing it to her attorney for filing. Pursuant to Pennsylvania law, an affidavit of consent must be filed within 30 days of its execution (i.e., approximately December 2013). Later in January 2014 the wife proceeded with the divorce and filed for a final decree, but Easterday died before a decree was entered. A decree in divorce was ultimately never entered as Easterday’s affidavit of consent was stale.

Critically, at the time of Easterday’s passing, the wife remained the beneficiary of his pension and life insurance policy. Upon Easterday’s death, the wife immediately withdrew the divorce matter and collected on Easterday’s pension and life insurance policy.

In response to the wife’s petition with the court seeking to compel the wife to preserve and return the pension and insurance money she received. The estate contended that the postnuptial controlled the distribution of the aforesaid funds (specifically that the wife was not entitled to receive them) and Easterday’s designation of the wife as beneficiary of his insurance policy became ineffective pursuant to 20 Pa.C.S.A. Section 6111.2. In response, the wife argued that the postnuptial did not apply as the beneficiary designations were never changed, that 20 Pa.C.S.A. Section 6111.2 did not apply as the affidavit of consent was “stale,” that the parties were reconciling at the time of his death, and because of those reasons, Easterday intended that the wife remain his beneficiary.

After a hearing, the trial court ruled that the estate was entitled to Easterday’s pension, as it was addressed in the postnuptial, while the wife could retain the life insurance proceeds as they were not addressed in the postnuptial. Both parties filed exceptions, which were unsuccessful, leading to appeals by both parties to Superior Court which issued the decision described herein.

23 Pa.C.S.A. Section 3323(g), which is part of the Divorce Code, states: “(g) Grounds established . . . (2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent … (3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.” In the Probate Code, 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) states “this section is applicable if an individual … dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. Section 3323 (relating to decree of court) and grounds have been established as provided in 23 Pa.C.S. Section 3323(g).” When evaluating the applicable law mentioned above, the court raised Pa.R.C.P. 1920.17 as also applicable herein. Rule 1920.17 prohibits the withdrawal of a divorce (and its economic claims) if divorce grounds have been established and the Estate does not the consent. While the aforesaid Rule directly applies to 23 Pa.C.S. Section 3323, the court opined that the Rule should also apply to 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) as it would be inappropriate to allow a surviving spouse the power to negate 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) by simply discontinuing the divorce action unilaterally.

In reviewing the underlying facts of this matter, the court took note of the fact that the affidavit of consent was not filed within thirty days of its execution. As a result, the lower court determined that divorce grounds were never established. Although the Estate argued that the lateness of the affidavit does not negate what it argued was an intent to consent to the divorce, the court, relying on public policy considerations, ruled that a strict compliance with the Divorce Code is required. In the court’s view, the integrity of the family is to be protected and the seriousness of the dissolution of marriage warrants strict compliance with the deadlines and requirements laid out in the statute. Indeed, the court pointed out, the establishment of divorce grounds takes on an added significance when, not only is the dissolution of a marriage at issue, but, in this case, it would also determine whether the Divorce Code or the Probate Code applies. Furthermore, the court observed that Easterday had an extended opportunity of several months to rectify the “stale” affidavit before his passing, but chose not to do so. Based on the above, the court ruled that a “stale” affidavit of consent is insufficient to establish divorce grounds, especially in a matter where it is, in its estimation, far from clear that the decedent possessed an intent to divorce at the time of his death.  As a result, the Probate Code controls this case.

Ultimately, the court, applying 20 Pa.C.S.A. Section 6111.2, ruled that Easterday’s beneficiary designation on his life insurance is, therefore, valid, and the wife may retain the proceeds from the same.

In opposition to the estate’s arguments, the wife asserted that Easterday made a deliberate and conscious choice to give his pension to her through an irrevocable election that she be his beneficiary. Of course, the above is in direct conflict with the postnuptial, which, by its terms described above, definitively prohibits the wife from being such a beneficiary. The estate pointed out that the postnuptial was executed after the beneficiary election was made.

In reviewing the above, the court first noted that spouses may waive their right to the pension of the other if the waiver is specific. In its estimation, the postnuptial in the instant matter was clear and unambiguous, therefore its terms, namely that the wife waived her right to Easterday’s pension without regard to reconciliation, which could only be changed by a subsequent signed agreement, applies hereto.

Perhaps the most significant legal challenge to the postnuptial was the requirements of the Employment Retirement Income Security Act (ERISA). Pursuant to ERISA, a pension must be administered, and the proceeds therefrom distributed, according to the terms of the plan documents, and not alternative agreements, such as a postnuptial agreement. While acknowledging the applicability of ERISA to the pension in this matter, the court also indicated that, although ERISA may require the pension to be distributed to wife, the terms of the postnuptial can also apply by requiring Wife to turn over to the estate any and all sums she receives as a pension beneficiary.

In the end, the court entered a Solomonic decision to cut the pension “baby” in half: the wife can keep the life insurance policy proceeds while the estate is to receive from the wife the pension proceeds she received.

Originally published on December 26, 2017 in The Legal Intelligencer and can be found here and was reprinted in the Pennsylvania Family Lawyer for its March 2018 edition. (see here).

A Collection of Unemployment Compensation Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of unemployment compensation law issues and legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Blog Posts:

A Collection of Family Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of family law issues and legal principles.  These writings have been published in The Legal Intelligencer, Upon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Musings:

The United Shapes of Arithmetic: Shape Reveal

Nathan Rudolph, my friend and fellow parishioner at St. John the Evangelist Anglican Church, has started a comic strip which I have greatly enjoyed and appreciated.  With his permission, I will repost them here after he posts them.  I think my readers will appreciate them as much as I do as they are rather insightful with a snarky edge.  Enjoy!

https://scontent-lga3-1.xx.fbcdn.net/v/t1.0-9/23316841_1353656414740969_5904752801940424929_n.jpg?oh=b4e8615a1308819c0c86f8e932bce6ce&oe=5A9F821C

Redemption Available Immediately After a Sheriff’s Sale

In the recent matter of City of Philadelphia v. F.A. Realty Investors Corp., 95 A.3d 377 (Pa.Cmwlth.2014), the Court had the opportunity to tackle a matter of first impression when interpreting 53 P.S. Section 7293 with regard to when a property owner may redeem his property after a sheriff’s sale.

In F.A., the piece of real estate at issue (“the Property”) was subject to a tax delinquency which led to an order by the trial court to sell the Property at a sheriff’s sale in order to satisfy the aforesaid tax delinquency. Not long after the order was entered, the Property was sold at sheriff’s sale. Immediately after the sale, Defendant filed to redeem the Property, but its petition to do so was dismissed by the trial court.

According to 53 P.S. 7293, a property owner may redeem a property sold at sheriff’s sale “at any time within nine months from the date of the acknowledgment of the sheriff’s deed therefore, upon payment of the amount bid at such sale.” The City of Philadelphia argued that Defendant’s immediate action to redeem the Property was premature as it acted prior to the acknowledgment of the deed. The trial court agreed with the City’s interpretation and application of the statute when it dismissed Defendant’s petition.

When interpreting the statute cited above, the Court first noted that, per 1 Pa.C.S. Sections 1921 and 1922, and the cases decided thereunder, statutory construction ought not lead to an absurd result, and when there is ambiguity in the language of a statute, the court may look to the intent of the legislature to help provide interpretive guidance. The Court also explained that the redemption statute is to be liberally construed in order to effect justice, pointing out that the purpose of sheriffs’ sales is not to strip a property owner of his real estate, but simply to collect on municipal claims.

Defendant argued that making them wait until the sheriff’s deed is acknowledged would likely, and unjustly, lead to unnecessary additional fees, costs, taxes, and/or interest and, therefore, its prompt action could avoid these costs.

The Court observed that the applicable statute has at least two interpretations. The first being that the phrase “at any time” literally means at any time, without regard to when the acknowledgment occurs, as long as it is within the nine month time frame. The second interpretation begins the nine month period for redemption at the time of acknowledgment.

As the language is, in the Court’s view, ambiguous, it looked to legislative intent and, on that basis concluded that the legislature would not try and increase a property owner’s difficulty to redeem property. Indeed, a property owner may retain possession of a house sold at sheriff’s sale until the sale is completed by the acknowledgment and delivery of the deed obtained at the sale. As a result, the Court believed it would be an absurd result to disallow a property owner from redeeming his property while he is in possession of it simply because the deed had technically not been acknowledged.

Finally, Pennsylvania law prohibits the redemption of a vacant property after the date of acknowledgment. In light of the above, namely that absurd results are to be avoided and that the purpose of sheriffs’ sales is not to strip someone of his property but merely to ensure municipal claims are satisfied, it would seem that the City of Philadelphia’s arguments would disallow someone from redeeming a vacant property at all. In other words, if a property is vacant, an owner cannot redeem it after acknowledgment and, if the City’s interpretation of 53 P.S. 7293 is correct, he would not be able to redeem it before either, and this would be an absurd result, not to mention an unjust one, preventing an owner from redeeming his property.

So, in sum, in light of the above, and after review of the applicable statutes, the Court ruled that a property owner can redeem his property sold at sheriff’s sale at any time up to nine months after acknowledgment of the sale.

Originally published in Upon Further Review on June 7, 2017 and can be found here.

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